SAN FRANCISCO (Legal Newsline) - A recently decided case that involved California employers revisited a question of whether employers are responsible for paying employees who are asked to “call in” to see if they need to come to work.

A U.S. Court of Appeals for the Ninth Circuit panel indicated Oct. 5 the state law issue of whether employers need to pay for “call in” time might be better decided by the California Supreme Court. 

Retailers often require an employee to call and find out if they are needed to work. Plaintiffs attorneys in the case of Casas v. Victoria’s Secret Stores, LLC, CV 14-6412 (C.D. Cal) argued that Wage Order 7’s Reporting Time Pay provision applied, because picking up a phone to actually call an employer counts as reporting time. 

The rules regarding reporting time would mean that an employee who calls in is entitled to at least two hours of pay, even if they do not have to physically report for work.

U.S. District Judge George H. Wu decided in December 2014 that employees do not merit pay unless they actually report to work -- meaning they physically go to the work site. 

Three Ninth Circuit judges - Harry Pregerson, John Noonan and Anthony Paez - all agreed with Wu’s ruling. They believed the Supreme Court was the proper place for this case to be decided, as other employment law cases have been decided there.

In 2015, with the passage of the Workers Bill of Rights, San Francisco enacted a new ordinance requiring that employees who call in but aren’t required to physically go to work must still be compensated for two hours. 

A similar measure has been proposed recently in the California Legislature.

Defense attorneys Jeffrey Berman and Timothy Hoppe of Seyfarth Shaw recently wrote about this issue. The possibility that the case might be adjudicated by the Supreme Court likely caused the attorneys to settle.

They would be asking for what we would call reporting time pay, and reporting time pay is set by regulation as to the amount," Berman said.

"It’s half of the employee’s usual or scheduled day, with no less than two and no more than four hours. Presumably, they would take the positions if it’s an eight-hour employee, the fact that they spent five seconds on the phone means they get four hours worth of pay.”

Berman believes Wu’s 2014 decision was correct. 

“He goes through the plain meaning of the term 'to report' and looks at prior versions of the regulation, " Berman said. "He basically says 'reporting' means actually showing up to work. That’s supported by some of the former versions of this regulation. We think it’s a pretty good opinion.”

These regulations were originally aimed at trying to prevent an employee from having to get ready for work, make babysitter arrangements and show up for work only to be told they’re not going to be doing at least half their day’s work.

"These things were not designed to be a windfall for plaintiffs lawyers -- requiring an employer to pay for ... four hours’ worth of pay because somebody spent five seconds on a phone call or sent an email,” Berman said.

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